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Wednesday, September 22, 2021

Explained: Afghan refugee gives birth on flight, what will her baby’s nationality be?

Citizenship of a child born mid-air is not straightforward because different countries have their own policies on this matter.

By: Explained Desk | New Delhi |
Updated: August 27, 2021 2:29:23 pm
Afghan refugee, nationality, Afghanistan, afghanistan, afghanistan evacuation, indian express, indian express news, indian express explainedA refugee is defined as a person who has been forced “to flee his or her country because of persecution, war or violence. (AP Photo/File)

An Afghan woman aboard a US evacuation flight gave birth to her child in the aircraft, after it landed at the Ramstein Air Base in Germany on August 21. Medical support personnel helped the woman deliver the baby in the cargo bay of the C-17 craft.

Air Mobility Command said through their Twitter account, “During a flight from an Intermediate Staging Base in the Middle East, the mother went into labor and began having complications. The aircraft commander decided to descend in altitude to increase air pressure in the aircraft, which helped stabilize and save the mother’s life.” The mother and daughter are in a stable condition now at a military medical facility, as per reports.

In Germany, where the Afghan woman’s baby was born, citizenship is not established through birth on German territory but by descent from a German legal mother and/or a German legal father. But since the baby was delivered in the cargo bay of a US aircraft, it is not clear which laws will apply in this particular case: German laws, US laws or if the baby will be considered a citizen of Afghanistan, the country to which her mother belongs.

Broadly, citizenship of a child born mid-air is not straightforward because different countries have their own policies on this matter.

A look at US citizenship laws regarding children born in flights

In the case of the US, an individual can become a citizen either at birth or by naturalisation. Under the 1944 Convention on International Civil Aviation, all aircraft have the nationality of the State in which they are registered, and may not have multiple nationalities.

Therefore, under this 1944 Convention, for births, the nationality law of the aircraft’s “nationality” may be applicable, and for births that occur in flight while the aircraft is not within the territory or airspace of any State, it is the only applicable law that may be pertinent regarding acquisition of citizenship by place of birth.

However, if the aircraft is in, or flying over the territory of another State, that State may also have concurrent jurisdiction, is what the US State Department’s Foreign Affairs Manual says.

Further, even if the aircraft is registered in the US but is outside the country’s airspace, a child born on such an aircraft cannot acquire US citizenship by citing place of birth as the reason.

What about children of refugees?

In the case of the Afghan woman’s child, the question of her citizenship is complicated by the fact that her mother is a refugee. It is not clear if the woman was travelling alone or with family and when she left Afghanistan. The aircraft she was in had taken off from an intermediate staging base in the Middle East.

A refugee is defined as a person who has been forced “to flee his or her country because of persecution, war or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. Most likely, they cannot return home or are afraid to do so. War and ethnic, tribal and religious violence are leading causes of refugees fleeing their countries,” as per UNHCR.

A document published by the European Council on Refugees and Exiles says that, “Refugee children born in exile are particularly exposed to the risk of statelessness. While most of them, in principle, inherit their parents’ nationality, many of them do not, for example due to sex-based discrimination in the nationality law of the parents’ country of origin. Several refugee children automatically acquire their parents’ nationality at birth, but this nationality will often only exist in theory, as parents are prevented from registering their child with authorities of the country of origin”.

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